Madhya Pradesh High Court
Shakar Khan vs Ghasi Khan on 5 October, 2023
Author: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 5 th OF OCTOBER, 2023
MISC. PETITION No. 1775 of 2022
BETWEEN:-
1. SHAKAR KHAN S/O MUNNU KHAN, AGED ABOUT
90 YEARS, R/O GRAM PEEPALKHEDI TEH.
RADHOGRAH DISTT. GUNA (MADHYA PRADESH)
2. SULEMAN KHAN S/O SHRI SHAKAR KHAN, AGED
ABOUT 57 YEARS, R/O GRAM PEEPALKHEDI TEH.
RADHOGRAH DISTT. GUNA (MADHYA PRADESH)
3. RAM CHARAN S/O SHRI HARLAL KIRAR, AGED
ABOUT 38 YEARS, R/O GRAM PEEPALKHEDI TEH.
RADHOGRAH DISTT. GUNA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI D.S.RAJAWAT- ADVOCATE)
AND
1. GHASI KHAN S/O GORE KHAN R/O MANAK
CHAUK TEH KUMBHRAJ DISTT. GUNA (MADHYA
PRADESH)
2. JAMEELA BAI D/O SHRI GORE KHAN R/O GRAM
JAMNER TEHSIL MADHUSUDAN GARH DIST
GUNA (MADHYA PRADESH)
3. MUNNI BAI D/O SHRI GORE KHAN R/O SYARI
TEHSIL KUMBHRAJ DISTT GUNA (MADHYA
PRADESH)
4. MUMTAZ BAI D/O SHRI GORE KHAN R/O
VILLAGE DOGAR TEHSIL RADHOGARH DISTT
GUNA (MADHYA PRADESH)
4A-1. RUKHSANA (DECEASED) ALTAF KHAN S/O SHRI
RAHEES KHAN R/O GRAM KAREDI TEHSIL
RAJGARH DIST RAJGARH (MADHYA PRADESH)
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
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II. HASEEN KHAN S/O SHRI RAHEES KHAN R/O
GRAM KAREDI TEHSIL RAJGARH DIST RAJGARH
(MADHYA PRADESH)
III PAPPU KHAN S/O SHRI RAHEES KHAN R/O GRAM
KAREDI TEHSIL RAJGARH DIST RAJGARH
(MADHYA PRADESH)
IV GUDDU KHAN S/O SHRI RAHEES KHAN R/O
GRAM KAREDI TEHSIL RAJGARH DIST RAJGARH
(MADHYA PRADESH)
V RAHEES KHAN R/O GRAM KAREDI TEHSIL
RAJGARH DIST RAJGARH (MADHYA PRADESH)
B MUMTAZ BAI D/O SHRI GORE KHAN THROUGH
LEGAL HAIR BHURI BAI W/O SHRI ANEES KHAN
R/O VILLAGE KAREDI TEHSIL AND DIST
RAJGARH (MADHYA PRADESH)
C FAZAL KHAN S/O SHRI BABU KHAN R/O VILLAGE
DONGAR TEHSIL MADHUSUDANGARH DISTT
GUNA (MADHYA PRADESH)
D FAREEDA BAI W/O SHRI SHARIF KHAN R/O GRAM
MANAK CHOWK TEHSIL KUMBHRAJ DISTT
GUNA (MADHYA PRADESH)
E(I) CHAND KHAN S/O SHRI BABU KHAN LEGAL HAIR
SANNO BAI D/O NISAR KHAN R/O VILLAGE
DOGAR TEHSIL MADHUSUDANGARH DIST GUNA
(MADHYA PRADESH)
E(II) JUNIYA BAI D/O NISAR KHAN R/O VILLAGE
DOGAR TEHSIL MADHUSUDANGARH DISTT
GUNA (MADHYA PRADESH)
F NISAR KHAN S/O SHRI BABU KHAN R/O VILLAGE
DONGAR TEHSIL MADHUSUDANGARH DISTT
GUNA (MADHYA PRADESH)
5. SUVHAN KHAN S/O SHRI MUNNU KHAN LEGAL
HAIR (I) AJMERI KHAN S/O SHRI SUVHAN KHAN
R/O VILLAGE PEEPAL KHEDI TEHSIL
RADHOGARH DISTT GUNA (MADHYA PRADESH)
II. SAHRIF KHAN S/O SHRI SUVHAN KHAN R/O
VILLLAGE PEEPAL KHEDI TEHSIL RADHOGARH,
GUNA (MADHYA PRADESH)
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
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III BANOO BAI D/O SHRI SUVHAN KHAN R/O KACHHI
KHEDA POST ANANDPUR TEHSIL LATERI DISTT
VIDISHA (MADHYA PRADESH)
6 KASAM KHAN S/O SHRI KARIM KHAN LEGAL
HAIR GAINDI BAI @NASBAN W/O SHRI KASAM
KHAN THROUGH LEGAL HAIR
I SHARIF KHAN S/O SHRI SHUBRATI KHAN R/O
GRAM SAHU MOHALLA WARD NO. 12
KUMBHRAJ TEHSIL KUMBHRAJ DIST GUNA
(MADHYA PRADESH)
II MAMTA BAI W/O SHRI LAL R/O GRAM
PEEPALKHEDA DISTT. GUNA (MADHYA PRADESH)
III AJMERI KHAN S/O SHRI GORE KHAN R/O MANAK
CHAUK TEHSIL KUMBHRAJ DISTT GUNA
(MADHYA PRADESH)
IV CHHOTE KHAN S/O SHRI GORE KHAN R/O
MANAK CHAUK TEHSIL KUMBHRAJ DISTT GUNA
(MADHYA PRADESH)
V. KALLO BAI D/O SHRI GORE KHAN W/O OF SHRI
IBRAHIM KHAN R/O SYARI TEHSIL KUMBHRAJ
DISTT GUNA (MADHYA PRADESH)
VI ANNO BAI D/O SHRI GORE KHAN W/O SHRI
RASEED KHAN R/O SYARI TEHSIL KUMBHRAJ
DIST GUNA (MADHYA PRADESH)
7 THE STATE OF MADHYA PRADESH THROUGH
PATWARI VILLAGE PEEPAL KHEDI DIST GUNA
(MADHYA PRADESH)
8 ALLADEEN S/O SHRI SHAKAR KHAN THROUGH
LEGAL HAIR (I) RUKHSANA KHAN W/O SHRI
ALLADEEN KHAN R/O GRAM PEEPALKHEDI
TEHSIL RADHOGARH DISTT GUNA (MADHYA
PRADESH)
II IMRAN KHAN S/O SHRI ALAUDDIN KHAN R/O
GRAM PEEPALKHEDI TEHSIL RADHOGARH
DISTT GUNA (MADHYA PRADESH)
III. ASLAM KHAN S/O SHRI ALLADIN R/O GRAM
PEEPALKHEDI TEHSIL RADHOGARH DISTT GUNA
(MADHYA PRADESH)
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
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IV IRFAN KHAN S/O SHRI ALLADIN KHAN R/O
GRAM PEEPALKHEDI TEHSIL RADHOGARH
DISTT GUNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI S.S.RAWAT- ADVOCATE FOR RESPONDENTS NO.1 TO 3)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Present petition under Article 227 of the Constitution of India has been
filed against the order dated 7.4.2022 passed by the Additional Commissioner
while hearing the second appeal against the order dated 15.10.2020 passed by
the Sub-Divisional Officer whereby an appeal preferred by the petitioners
against the order dated 5.3.2015 passed by the Tahsildar, by which the mutation
of present respondents in the revenue records was denied, was allowed setting
aside the order passed by the Tahsildar, which was affirmed by the Additional
Commissioner.
2.Brief facts of the case are that father of present respondents Gore
Khan had filed a civil suit bearing civil suit No.16-A/1989 before the Civil
Court for declaration and injunction and vide judgment and decree dated
18.9.1991 the civil Court decreed the suit. Against the judgment and decree
dated 18.9.1991 an appeal was preferred by the petitioners which was registered
as first appeal No.2-A/1994 but the same was dismissed vide judgment and
decree dated 19.3.1997. Against the said judgment and decree, present
petitioners had moved before this Court by filing second appeal which was
numbered as S.A.No.273/1997. During the pendency of the second appeal
initially this Court was pleased to stay the judgment and decree dated 18.9.1991,
but later on the said second appeal got dismissed vide judgment and decree
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
dated 21.9.2001.
3.After dismissal of the second appeal, present respondents had filed an
execution of the judgment and decree dated 18.9.1991 before the Civil Judge,
Class I, Raghogarh, which was accepted vide order dated 15.9.2017 and it was
directed that mutation be done in the names of the respondents in the revenue
records. In the aforesaid context, an application was moved before the
Tahsildar for mutation in the names of present respondents which was
registered as 01/2019-20/A-74, but vide order dated 5.10.2019 the said
application was rejected. Against the said order, respondents had preferred an
appeal before the Sub-Divisional Officer, Raghogarh, which was registered as
case No.44/2019-20 and vide order dated 15.10.2020 the appeal was allowed
and the order of Tahsildar rejecting the application for mutation of present
respondents was set aside. Against the said order, present petitioners had
preferred second appeal before the Commissioner. After tendering appearance
of the parties, an application under Section 29 of the M.P. Land Revenue Code
was moved before the Board of Revenue for transferring the said appeal to
some other Court. On 23.2.2022 time was sought on behalf of present
petitioners, who were appellants therein, by moving an application on the
ground of pendency of a matter before the higher Court relating to the subject
matter touching the merits of the case, but the said application was rejected and
it was directed to the parties to file written arguments. Thereafter the matter was
taken up on 2.3.2022. On that date, the copy of the matter pending before the
Board of Revenue was submitted by present petitioners and it was submitted
that before the Board of Revenue it would be listed on 30th March, 2022.
Learned Commissioner in the interest of justice, adjourned the matter and
directed it to be listed on 31st March, 2022. On 31st March, 2022 the matter
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
came for hearing and as no arguments were advanced on behalf of the
petitioners, the matter was fixed for orders and on 7.4.2022 the matter was
finally decided and while dismissing the appeal, the order of the Sub-Divisional
Officer was affirmed. Aggrieved by the aforesaid, present petition has been
filed.
4.Learned counsel for the petitioner has vehemently argued that no
opportunity of hearing has been granted to the petitioners for advancing
arguments as on 2.3.2022 when the proceedings pending before the Board of
Revenue were produced by them, it was only observed by the learned
Additional Commissioner that the proceedings would be kept in abeyance till
the next date of hearing and there was no mention of the fact that the matter
would be heard on that date and thereafter would be listed for orders. It was
further argued that on 31.3.2022 when the matter was listed, the date was given
to the petitioners for further listing of the matter which was 7.7.2022 which
would be reflected from the order-sheet of that date, but without any notice to
the petitioners final order was passed on 7.4.2022 which is per se illegal.
5.It was also contended that from bare perusal of the order-sheet dated
31.3.2022 it would be evident that as an afterthought certain lines had been
added in the order, as the very handwriting in which those were written were
altogether different from the handwriting of the proceedings which were
recorded earlier and the said fact would be visible to the naked eyes. Therefore,
passing of the order on 7.4.2022 had caused great prejudice to the petitioners as
no opportunity of hearing was granted to them to adduce their arguments and
controvert the findings recorded by the first appellate Court. Thus, it was
submitted that present petition deserves to be allowed and the matter is required
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
to be relegated back to the Additional Commissioner for fresh adjudication on
merits after giving opportunity of hearing to the petitioners.
6.Per contra, Shri Rawat appearing for the respondents submits that from
bare perusal of the impugned order, Annexure P/1, dated 7.4.2022, specially
from para 2 it would be very much evident that on the date of hearing the parties
were heard and they were also given opportunity of submitting written
arguments within seven days. Thus, it cannot be said that the proceeding dated
7.4.2022 was not within the knowledge of present petitioners and they had not
appeared and no opportunity of hearing was granted to them.
7.It was further argued that so far as the contention that proceeding dated
31.3.2022 reflects some manipulation/ malafides on the part of the concerned
clerical staff of Additional Commissioner, there is no averment of any kind in
the writ petition nor the persons against whom malafides have been attributed
has been made party, thus, mere on bare averments it cannot be said that order
dated 31.3.2022 was in any way manipulated.
8.It was also argued that on 23.2.2022 the prayer for adjournment was
denied and on that date also present petitioners were granted time to file written
arguments as well as on 31.3.2022 the noting of the petitioners of the date
7.7.2022 was rejected. Thus, the very contention of the petitioners that they
were not heard and in their absence the order has been passed cannot be
accepted and the petition being devoid of any substance is liable to be
dismissed.
9.Heard counsel for the parties and perused the record.
10.The basic challenge to the impugned order dated 7.4.2022 by the
petitioners is on the ground that they were not heard and on the earlier date, the
matter was adjourned for 7.7.2022 which they had noted, but on the basis of
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
some malafides and manipulation in the said order-sheet, the noting of the date
by the petitioners was rejected and in absence of the petitioners the impugned
order was passed. In that regard, if the very order passed by the Additional
Commissioner dated 7.4.2022 is seen, in para 2 the learned Additional
Commissioner has observed as under :-
"2. करण म अधीन थ यायालय का अिभले ख आहत िकया जाकर उभयप कार के
िव ान अिभभाषकगण के तक सुने गये। अपीलाथ गण के िव ान अिभभाषक ारा करण म
ल खत तक पेश करने का िनवेदन िकया गया, उ ह सात िदवस के अंदर ल खत तक पेश
करने का समय िदया गया"
11.From the aforesaid, it would be very much evident that the petitioners
were heard before passing of the order and they were also given seven days
time to prefer their written arguments and at this juncture, it is not justified on
the part of the petitioners to aver that they were not given any opportunity of
hearing.
12.The contention of the petitioners that the order-sheet dated 31.3.2022
has been manipulated and certain lines have been added after passing of the
order rejecting the very noting of the date 7.7.2022 by the petitioners appears to
be more of frustration than of any substance, as firstly only bare allegations
have been levelled by the petitioners. No malafide has been attributed to any of
the staff of the Additional Commissioner or the Additional Commissioner, nor
they have been made a party to the present petition. From the bare perusal of
the order-sheet also, it would be reflected that opportunity was granted to the
petitioners to submit written arguments, but it appears that petitioners were bent
upon to get the matter transferred to some other place and were much harping
upon the pendency of the application under Section 29 of the M.P. Land
Revenue Code before the Board of Revenue. Learned Additional
Commissioner had also given time to the petitioners to procure any order from
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
the Board of Revenue and had adjourned the matter for 31.3.2022, but the
petitioners could not procure any order from the Board of Revenue nor could
submit written arguments and appears to have deliberately noted some date and
on the basis of the aforesaid the claim of the petitioners cannot be accepted.
13.Learned counsel for the petitioners mainly assailed the impugned order
on the ground that no opportunity of hearing granted to them, but has not
assailed the said order on merits and as this Court has already concluded that
the order had been passed only after giving ample opportunity of hearing,
therefore, this Court does not find any reason to go into the merits of the case.
14.Accordingly, the petition being sans merits is hereby dismissed.
(MILIND RAMESH PHADKE)
JUDGE
ms/-
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-10-2023
05:42:54 PM
